A millwright who violated his employer’s “Cardinal Rules” by committing a lock-out violation, deserved a six-month suspension and with a last-chance stipulation, an arbitrator has held. The company’s decision to dismiss the employee was overturned.

The employer had five Cardinal Rules of safety. Cardinal Rule #3 read, “Isolation and lock out procedures must always be followed.”

The employee could not locate the switch to turn off electrical power to equipment that he was asked to fix. He decided that instead of locating and isolating the power source, he would disconnect electrical wires and put tape on the exposed wiring. Apparently the tape came off one of the wires and it touched another wire which caused sparks and an electrical short. No one was injured.

Three months earlier, the employee had received a one-day suspension for what the arbitrator called an “identical first offence”.

The arbitrator found that both safety violations occurred in low-risk situations. There was no injury, no damage to property and no evidence of lost production. The employee’s decision was influenced by his desire to complete the task in the time alloted to him and not for selfish reasons. At the same time, the arbitrator acknowledged that his decision must deter other employees from violating safety rules. The arbitrator reinstated the employee with a six-month suspension, and imposed a condition that should the employee “commit any safety violation” in the one year following his reinstatement, the employer would have just cause to dismiss him.

The Ontario Court of Appeal has upheld a trial judge’s decision that an employee’s violation of a lockout rule was not just cause for dismissal.

The employer, a manufacturing company, had a strong culture of workplace safety. Its “Cardinal Rules” of safety included the requirement that employees lock out any machinery being worked on, and that employees immediately report any violations of the company’s safety policy.

Plester, a line-supervisor, attempted to fix a machine without locking it out. He did not immediately report his violation. The next morning, he tried to dissuade subordinate employees from reporting his mistake. However, they had already reported the violation. The company promptly fired the supervisor.

The Ontario Court of Appeal stated:

“We appreciate that an employer’s ability to respond strongly and swiftly to violations of rules designed to ensure workplace safety reinforces the importance of such rules, and promotes a culture of workplace safety. We also appreciate that a line-supervisor, such as the respondent, is generally subject to a higher standard than a line worker. And, given PolyOne’s fully warranted concerns about workplace safety, we agree with the trial judge that the respondent made a serious mistake. However, the respondent’s mistake did not appear to have put any other persons at risk, and he was a long-standing, good, hard-working employee with only minor incidents of past discipline as a line-worker, pre-dating his promotion to line-supervisor some six years before.

“Moreover, the trial judge accepted that the respondent planned to report his violation; what occurred was an intended short delay in reporting, as opposed to a suppression of a violation. We are not persuaded by PolyOne’s argument that that the respondent’s conduct was such a violation of trust that a continuing relationship was impossible.”

This decision shows that not every safety violation will be just cause for dismissal, even where the employer has a strong safety culture. Instead, depending on the severity of the safety violation, progressive discipline may be necessary before an employer dismisses an employee for just cause.

On June 15, 2017, the Supreme Court of Canada released its decision in Stewart v Elk Valley Coal Corp. (2017 SCC 30). This is a landmark decision, reinforcing the right of employers to take proactive risk mitigation and management measures through alcohol and drug policies to ensure workplace safety.

In this case, Ian Stewart (“Stewart”) worked in a safety-sensitive mine operated by the Elk Valley Coal Corporation, Cardinal River Operations (“Elk Valley”). The employer implemented an alcohol and drug policy, which among other things, required employees to disclose addiction issues before any alcohol or drug-related incident occurred (“Policy”). Employees who self-disclosed would be offered treatment. Employees who failed to self-disclose in advance of an incident and subsequently tested positive for alcohol or drugs, could be terminated.

Zero-tolerance safety rules, often called “Life Saving Rules”, “Cardinal Safety Rules” or “Safety Absolutes”, are becoming more common in industry. An arbitrator has now upheld the firing of a unionized employee for one violation of a tie-off rule found in “Safety Absolutes”, even though the violation was for a brief period of time.

We have previously posted on other cases involving such zero-tolerance safety rules. In some cases, courts and arbitrators have held that the violation of the safety rule is just cause for dismissal, and in other cases not.

The employee, a scaffolder for a construction firm in Newfoundland, was found standing on a steel deck of a scaffold at a height of about 7′ 2″, and was reaching up to a height of about 12 feet and leaning out over the unguarded end of the deck.

The “Vale Newfoundland and Labrador Long Harbour Processing Plant Project”, at which the employee was working, had Safety Absolutes that read, in part:

“Given safety is our first priority on the Long Harbour Project, it is important that everybody understand our safety expectations, especially those that can have serious consequences. There are certain behaviours and actions that can adversely affect safety and the environment that we simply cannot permit to exist or happen and we must have zero tolerance.

These safety absolutes must be strictly enforced on our Long Harbour Project. Violations of the following will result in site access being revoked unless there are exceptional mitigating circumstances.

Failure to comply with a Project Safety Absolute will result in the individual being removed from the site indefinitely. The individual will have to reapply through Labour Relations to come back on site and provide a suitable reason as to why he/she should be allowed to work on site, and their commitment to adhere to all HSE requirements. Further failure to adhere to the site requirements will result in the individual being permanently removed from site.”

There was evidence that the safety absolutes were “preached” to employees at daily safety meetings; the employee signed an acknowledgment form that he received a copy of the employee handbook; the handbook stated that violation of the safety absolutes would result in “immediate termination and revocation of site access”; and that the safety absolutes, and consequences of violating them, were brought to the attention of the employee at orientation.

The arbitrator upheld the employee’s dismissal. In the arbitrator’s opinion, the six foot tie-off rule was reasonable, “having regard to the risk to health and safety from falling from the height of six feet or higher, and the fact that a six foot rule tie-off is in effect at other construction sites in Newfoundland and Labrador and in other Provinces”. The employee’s safety violation was not trivial or insignificant. He knew that he was in violation of the rule. He had no explanation for the violation.

The Ontario Superior Court of Justice has held that a company did not have just cause to immediately terminate the employment of a supervisor for a lock-out violation and his failure to report the violation.

Polyone Canada Inc. is a manufacturing company that makes plastic pellets in various sizes and colours. The court found that Polyone had a strong culture of health and safety. In particular, the company emphasized its “Cardinal Rules”, which include the requirement that any machinery being worked on must be locked out and tagged by any employee working on the machinery.

The incident that gave rise to this case involved a line supervisor with 17 years of service with the company. On the day of the incident, the supervisor was informed that the dicer machine was not working properly. Preoccupied by frustration with some of his employees, the supervisor went over to the machine to clean it out. In the presence of some of his employees, the supervisor removed the internal safety screen and reached into the machine, momentarily forgetting that he had not first locked out the machine. Fortunately, neither the supervisor nor any other employees were injured as a result of the incident, which clearly constituted a breach of the company’s “Cardinal Rules”. Furthermore, despite being well aware of his obligation to immediately report the incident to management, the supervisor did not do so. However, the employees who had witnessed the incident were bothered by it and they reported the incident to management later that night. The company commenced a workplace investigation the next day and terminated the supervisor for just cause approximately one week later, following the completion of its investigation.

The supervisor then launched a wrongful dismissal action, which the company defended on the basis that it had just cause to terminate the supervisor’s employment as a result of his serious breaches of the “Cardinal Rules”. The court concluded that the supervisor’s failure to lock out the machine was very serious as it could have resulted in signficant harm. The court went on to state that the supervisor’s failure to report the incident was even more serious, as unenforced safety rules in a workplace where heavy equipment operates present a continuing safety risk. In addition, the fact that the employee held a supervisory position aggravated the matter, because the supervisor’s conduct could send a message to employees that the company safety rules were not important.

However, despite all of these findings, the court found that the supervisor’s conduct did not give rise to just cause for termination. The court found that in a similar situation which had occurred earlier in the year, an employee had failed to lock out a machine. The matter was not properly reported and the company did not discipline the employee. In light of the company’s response to the earlier incident, the court found that the termination of the supervisor’s employment for just cause in this case was disproportionate, despite the admitted seriousness of the supervisor’s actions. As a result, the court found the supervisor was entitled to 14 months’ reasonable notice.

One of the key points for employers to take away from this case is the critical importance of ensuring that they respond in a consistent manner to all violations of safety rules.

Subscribe now!

Dentons is the world's largest law firm, delivering quality and value to clients around the globe. Dentons is a leader on the Acritas Global Elite Brand Index, a BTI Client Service 30 Award winner and recognized by prominent business and legal publications for its innovations in client service, including founding Nextlaw Labs and the Nextlaw Global Referral Network. Dentons' polycentric approach and world-class talent challenge the status quo to advance client interests in the communities in which we live and work. www.dentons.com